Poking the IP bear

It’s been more than a decade since I’ve been engaged in what used to be called “the copyright wars.” It was in the summer of 2007 that I announced that I was shifting my work to the fight for a democracy that works. And though I’ve signed letters about IP policy since then, I’ve tried hard to stay focused on the more fundamental fight.

But as we approach the 20th anniversary of the Sonny Bono Copyright Term Extension Act, I couldn’t resist writing something about the latest effort by Congress to give famous creators gifts. For the “gift economy” is the economy of DC — favors in, campaign contributions out—and the idea that Congress is gifting even longer effective copyright terms is just absurd.

Yet that is precisely what The Classics Act (the “Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act”) does. Creators of audio recordings from before 1972 are being given a new exclusive right to protect those recordings until 2067 — which for some works means a term of 144 years.

And so, in Wired, I wrote a piece against this latest extension. People had already been suggesting that after the last extension fight, Congress was through with copyright term extension. But as I argue in the Wired piece, this gift is certain to trigger arguments about the “fairness” of granting such a long term to some and not to others. (Indeed, the great Bob Kohn, in defending the CLASSICS Act, argues that its aim is simply to “harmonize” the protection with the protection for creators post-1972; but Kohn knows that “harmonization” so far has been about foreign law.)

The piece has triggered a gaggle of outrage. Here are three quick points in response.

The Google “shill” argument

Jonathan Taplin writes:

This—were it true—is a great and important charge not made sufficiently often in the context of academic work. Indeed, when I left Stanford, I became director of the EJ Safra Center for Ethics to launch a 5 year research project studying “institutional corruption”—roughly, influences, within an economy of influence, that weaken the effectiveness of an institution, especially by weakening public trust of that institution. The academy should be a prime target of that critique. I’ve got a chapter on the problem in a forthcoming book, America, Compromised (University of Chicago 2018). And the problem is why I’ve had a disclosure statement on my blog for more than a decade.

So all that means I don’t mean to question the fairness or appropriateness or importance of questioning the financial interest of anyone pressing for public policy changes. I think that line of questions is fundamentally fair and increasingly critical just now. But as the short form of my disclosure declares, “I don’t shill for anyone.” And by “anyone,” I include Google.

It’s been more than a decade since anyone serious has tried to make a contrary claim. (Brett Glass pops up every once in a while declaring that I am a paid lobbyist for Google. As I blogged in response to him, there is no basis in fact for that claim.) I have never worked for Google. I have never been paid by Google. I got my job at Stanford before Google was giving money to anyone. My job at Stanford did not include the obligation of raising money for anything. The Dean at the time, Kathleen Sullivan, allowed me to found the Stanford Center for Internet and Society, and agreed to fund it and its work while I was at Stanford. Google became a funder of Stanford to support the work of the Center after that. That was not my doing (again, I didn’t raise money at Stanford), that didn’t benefit me (my salary and the Center’s budget was set and independent of law school fundraising), and it didn’t stop me from doing lots of work that really pissed off Google (see, e.g., “For the Love of Culture”). Google didn’t fund my work at Harvard. It doesn’t fund anything I work on now. And yes, Google has taken policy positions consistent with my own, but most of the important positions were ones I took long before there was a Google policy shop. For example, network neutrality (at the core of my book, The Future of Ideas (2001)), and work about the public domain (triggered by the Sonny Bono Act (1998)).

So it’s a fair question — am I a shill—and it should be asked of me, and others, always. And I’m still happy to answer it, even in its “when did you stop beating your wife” form: No, Jonathan, I am not a Google shill.

On the “monopoly” question

In the piece, I refer to the right that Congress promises to grant these “legacy” creators as a “monopoly.” That triggered a familiar fight by the defenders of copyright. Neil Turkewitz, for example, tweeted:

But of course, this bill purports to do something very different from what copyright ordinarily does. Ordinarily, copyright grants a right in exchange for a creation. (We can bracket whether we want to call that a “monopoly.’ Obviously, in the sense our framers meant the term, it is: it is an exclusive right granted by the government. But put that aside for now.) This bill would create an exclusive right for something that already exists and is in the public domain. That is precisely what the history of the fight against government granted monopolies has always been about. (Darcy v. Allein was about a “monopoly” on playing cards.) And while I’m the first to defend the monopoly authors get when they create stuff, I join with many others in criticizing a grant of exclusive rights in exchange for no new creativity.

Indeed, this difference is obvious in the piece by Terry Hart cited by Turkewitz against me. In denying that copyright is a monopoly, Hart offers three arguments.

First, he asks whether copyrights “raise prices.” That’s not really an argument about whether something is a monopoly. It’s an argument about whether the monopoly carries with it any monopoly power. Whether it does or doesn’t is separate from whether it is a government granted exclusive right—which copyright plainly is. But put this aside.

Second, Hart asks “Does Copyright Take Away Anyone Else’s Rights.” Ordinarily, the answer to that question is no. I get a copyright for this essay when I write it, but that doesn’t take anything from anyone else because before I wrote it, no one had it.

Yet with this bill, the answer to this question is plainly yes! The whole point of the criticism that I and 40 IP professors have made is that this act would grant an exclusive right to work that is now in the public domain. (David Clowery insists Congress did not “intend” to allow this right to pass to the public domain. “Intent” is not the question. In fact, as a federal court has held, that is precisely what Congress did.)

Third, Hart asks, “Does Copyright Create Barriers of Entry to Potential Competitors.” Here again, the answer is obviously yes. By creating, phoenix like, this new right, Congress would further strengthen, as I argued, companies like Apple and Spotify (and to be fair here, let’s add Google) — companies that can afford the costs of managing this new right. By contrast, it would burden the ability, as I argued in the piece, of entities like archives to make old recordings available.

So again, I’m happy to agree never again to use the word “monopoly” to describe the right that copyright law ordinarily grants if you lot are willing to agree to acknowledge that a right granted to work that is in the public domain is precisely the sort of right that the fight against “monopolies” has always, properly, been about.

The point missed

Finally, for all the anger, what’s striking to me about the response to the piece is that it ignores the core (some might say) compromise that I have, following Chris Sprigman (pdf), long supported.

Whether or not you believe “legacy” artists deserve more copyright protections, there is no good reason not to condition that gift upon the artist taking some steps to claim that right, so that the “legacy” recordings no one cares about can be simply and cheaply made available through archives and other sources. (And before you start with Berne and the like, re-read Sprigman’s piece.)

This is the point just never engaged. Way back in the day, I had proposed that after 50 years, domestic copyright owners be required to register their work and pay $1 to continue to enjoy federal protection for their right. Jack Valenti opposed the idea, claiming it was unfair to “poor” copyright holders — presumptively, those rights holders who continue to earn royalties 50 years after publication but who can’t afford the $1. No doubt, that’s not an adequate solution for many kinds of copyrighted work — we need a better system for photographs, for example—but the basic point repeated in my Wired piece is that regardless of your view about the good in protecting “legacy” artists, there should be no objection to small and efficient formalities to help us distinguish between work that no one cares about, and work that would actually benefit artists.

This is the obvious response to the great work done by scholars such as Paul Heald, demonstrating that copyright blocks access to all sorts of no-longer-commercially-viable creative work. (See his How Copyright Keeps Work Disappeared. See also his work with Chris Buccafusco Do Bad Things Happen When Works Fall into the Public Domain?: Empirical Tests of Copyright Term Extension).

Why do we allow this? And why can’t we get the pro-IP crowd to at least acknowledge the need for a more efficient IP property system, so it is easy to know who needs to ask whom for permission? Can’t we at least agree on this?

I will always believe that Congress should not be extending exclusive rights in exchange for nothing. But if it is going to grant rights for work that has already been created and is in the public domain, then let’s at least agree that it should require at least a minimal step to distinguish between work that needs such protection and work that doesn’t?

And if not, why not? Because people like Brewster Kahle (and the Internet Archive) don’t fight statutes like this because they’re trying to help Google. To the contrary, the only entities benefited by complicated and expensive-because-inefficient rights systems are big companies like Google (go on, call them monopolies) — and of course lawyers.

Finally, let me acknowledge what I think is probably a mistake. I had originally referred the to protection that would be granted by this act as potentially triggering a felony. That’s because I’ve never completely understood how a digital audio performance right interacts with the protection against distributing copies of such recordings. That has always had me worried about the interaction with the NET Act. But Devlin Hartline insists there is no felony exposure created by this bill. I’m grateful for the correction and have updated the article.